Hawkes

[2012] FamCA 773

FAMILY COURT OF AUSTRALIA

HAWKES [2012] FamCA 773

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act

Adoption Act2009 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Mr Hawkes and Ms Hawkes

RESPONDENT: Unknown

FILE NUMBER: BRC 4677 of 2012

DATE DELIVERED: 20 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 20 August 2012

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: Unknown

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child P born … August 2003 (“the child”).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawkes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4677 of 2012

Mr Hawkes and Ms Hawkes

Applicants

And

UNKNOWN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for leave to adopt the child P (“the child”) who was born in South East Asia in August 2003. She is the subject of an Application to this Court for leave to adopt pursuant to section 60G of the Family Law Act1975 (Cth) (“the Act”). Adoption proceedings pursuant to State legislation have not yet commenced. I note that she is a child who is five or over and who is under 17 within the meaning of the Adoption Act 2009 (Qld) (“the Adoption Act”).

Legislation and Relevant Principles

1. In Levine & Perpenko (2010) FamCA 67 I outlined the legislation and relevant principles governing applications of this type. I now reiterate those principles here.

2. As Chisholm J remarked in Fogwell & Ashton (1993) FLC 92-429 at 80,390:

   It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act1975.

3. His Honour went on to say at 80,390:

   In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid.  I note, however, that for reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable:  see O Jessep and R Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179, at 182-185, discussing, in particular, Re LSH;  Ex parte RTF (1987) FLC 91-843; 75 ALR 469.

4. These proceedings, too, are undefended. No argument is addressed in respect to the constitutional validity of the provisions of the Act. I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings.

5. Adoption of children in this State is governed by the Adoption Act which came into force on 1 February 2010.

6. The new Adoption Act specifies criteria different to those in the previous Act. Critically, the Adoption Act requires prospective adopting step-parents to satisfy, in addition to previous criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this Court has granted leave to adopt.

7. Further, a natural parent must, absent an order of the Court dispensing with same, obtain the consent of the other parent, irrespective of whether the natural parents of the children were married.

8. Section 60G of the Act was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred, in which his Honour Chisholm J considered whether the criterion of best interests applies to an Application for leave to adopt. The Act now makes it plain that a decision whether to grant leave is governed by a determination of best interests (section 60G(2)). The note to that section makes it plain that familiar best interest considerations, contained in section 60CC of the Act, apply.

9. While, as has been observed, the failure to obtain leave now has consequences under the (new) Adoption Act, it also has consequences under the Act. Section 61E of the Act provides:

   (1)      This section applies if: 

   (a)a child is adopted; and

   (b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

   (2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

10. The expression “prescribed adopting parent” is defined in s 4(1) of the Act as follows:

    Prescribed adopting parent, in relation to a child, means:

    (a)     a parent of the child; or

    (b)the spouse of, or a person in a de facto relationship with, a parent of the child; or

    (c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

11. Section 65J of the Act provides:

    (1)    This section applies if: 

    (a) a child is adopted;  and

    (b)immediately before the adoption, a parenting order was in force in relation to the child.

    (2)The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

12. Thus, an effect of adoption is that all parental responsibility for the child or children ceases, as do all other parenting orders. Parental responsibility is defined in the Act in section 61B:

    In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

13. Proceedings for leave to adopt pursuant to section 60G of the Act are, in my view “child-related proceedings” within the meaning of the Act and, specifically, within the meaning of Division 12A. That Division imposes duties upon the Court included among which are to deal with as many aspects of the matter as possible on a single occasion.

14. Moreover, the Court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the Court upon the interests of children and the impact of proceedings on children.  In my view, those matters apply no less so in proceedings of this type. 

15. I note, in particular, section 69ZN of the Act requires the Court to consider the impact that the conduct of the proceedings may have upon the child, and the Court is instructed to actively direct, control and manage the conduct of the proceedings and that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

16. As if to underline the last mentioned principle (contained in section 69ZN(7)), section 69ZT makes specific provision with respect to the rules of evidence, and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

17. It is important to understand that the decision facing this Court is different to the decision which will face the court charged with the decision whether to permit the adoption (which, after 1 February 2010, is the State Magistrates Court).  The granting of leave does not have the consequences just described; only the order for adoption made by that State court has those consequences (see generally Fogwell at 80,391 onwards).

18. Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings. 

19. First, the leave of this Court is a precondition to the making of an order for adoption in favour of a step-parent by the State Magistrates Court. 

20. Secondly, and importantly as it seems to me, the State court must consider (as well as the general requirement to consider the best interests of the relevant child or children) the matters enumerated at s 208 of the Adoption Act. For example:

    208 Requirements for making final adoption order

    The court may make a final adoption order only if it is satisfied of the following matters –

    …

    (e)an order for the child’s adoption by the step-parent would better promote the child’s wellbeing and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order; …

21. In a similar vein, although neither consent, nor specified ages of the child or children are specified as requirements of the Application under the Act in this Court, they nevertheless seem to me to be directly relevant to such an Application, if for no other reason than that this Court ought not grant leave to permit proceedings in the State court which are doomed to fail because of the absence of those mandatory (State) prerequisites.

22. The question then, in my view, can be expressed this way: is it in the relevant child or children’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or, absent consent, by court order) cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this Court that might involve the parent and step-parent?

Background and decision

1. P, as I will call her, was born to her mother and an unknown father.  There has been no contact between P and her father since early in the mother’s pregnancy. 

2. P has an older sibling, D, who is the product of a relationship between the mother and a person to whom she was married. That marriage has, according to the affidavits filed in support of the application, been annulled. 

3. The child D, born 18 August 1999 moved away before P was born.  The mother has had no contact with him, and there is unlikely to be any contact between the two of them in the foreseeable future. 

4. The male applicant and the mother have been residing together since 3 January 2008. In that time they have had their own child born in March 2009 who is now three. 

5. The affidavit material in support of the applicant deposes to a close and loving relationship between P and the parties’ own child, and the male applicant deposes to having met all of P’s needs from the time that he, and the mother formed a relationship some four years ago. 

6. So too, the male applicant deposes to a set of circumstances whereby P has been embraced into the family, comprising he and the mother and P’s younger sibling.  

7. In all of the circumstances of this case, it seems to me that granting the application for leave to adopt is in the best interest of P and I so order.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 August 2012.

Associate: 

Date:  22 August 2012